What is a Will?

A Will is a legal document that explains what your wishes are in relation to disposing of your assets and who you want to perform your wishes in the event of your death. This will also include your wishes on a guardian for any surviving children under the age of 18 years. It is never pleasant discussing issues around our own mortality, but it is really important to have a valid Will that makes sure that your wishes are carried out and that your loved ones are provided for.

What are the requirements for a legal Will? What will make a will invalid?

A Will is used to protect the wishes of the deceased, who is known as the testator. A valid Will needs to meet these requirements:

• It must be in writing
• The Will has to be signed in the presence of two witnesses, who cannot be a beneficiary or spouse of a beneficiary
• The testator has to be over 18 years’ old
• The testator must be sound mind and entered into the Will freely and without any duress

If these are not all met, the Will is going to be invalid.

Although it is possible to use a DIY kit to do your own Will, which can be cheaper than using a lawyer, this can be an expensive mistake since if they are not done correctly they can be held as invalid. Not only can this be expensive it can also be distressing for friends and family during a difficult time. Issues relating to inheritance can unfortunately arise and become contentious and so taking legal advice can ensure that a valid Will is created and your wishes are protected.

What happens if you don’t create a Will?

When a person dies without having a valid ill in place, the division of their assets will follow a legal process known as the rules of intestacy. This will also apply in situations where there is a Will but it is not regarded as legally valid.

Under these rules, the estate of the deceased is divided as follows:

• Married couples and civil partners will receive a set amount (currently £270,000 plus half of everything above that amount) unless there are no children, grandchildren or great grandchildren, in which case they will inherit everything. This can still apply even if the couple are living apart but still remain married
• Children (both those by birth as well as those adopted) will receive half of anything above the £270,000 if there is a surviving spouse. If there is no surviving spouse or civil partner, then then children will inherit the whole estate shared equally between all of the deceased’s children. Step-children do not receive anything unless they have been legally adopted
• Grandchildren and great grandchildren generally will not inherit other than in certain situations where the parent or grandparent dies
• Other relatives will inherit if there is no surviving spouse or children or grandchildren in the following order: the deceased’s parents, siblings (then their children), half-siblings (then their children), grandparents, aunts and uncles (then their children) and finally half aunts and uncles (then their children)
• Where there are no surviving blood relatives then the Crown takes the estate

Can you change a Will?

Wills can be changed and this is recommended where there is any major life event. Any changes to your circumstances should be reviewed to determine if you need to amend your Will or create a new one. Events such as marriage, buying a home with someone, having children, remarriage and the death of a close relative can all effect your Will and need to be considered carefully since it is likely to result in you needing to make changes.

Where the Will only needs amending then this can be done by adding a codicil, which must be signed and witnessed in the same way as the Will to be legally valid.

Where a new Will is required, the old Will must be destroyed and the new Will needs to state that it replaces any previous Wills. It is important where circumstances change to find out what this does to your Will.

It is possible for a Will to be challenged if there is a suggestion that it does not accurately represent the wishes of the deceased or for any other reason that could invalidate it (such as being signed under duress or the testator lacking the necessary mental capacity). This is why it is very important to get legal advice in order to make sure you have a valid Will.

Does marriage or divorce revoke a Will?

An important life change in inheritance law is marriage, which immediately voids any existing Will. This is a very important time to ensure you have a new Will made that covers your wishes. In cases of remarriage, this can be particularly important where there are possibly children from different relationships prior to the marriage.

Divorce does not revoke a Will, which remains valid. Following a divorce, if a Will is not updated (and the situation of divorce is not covered in the Will), the ex-spouse will not inherit but instead be treated as if they died on the date that the decree absolute was granted, and the gift will fail. It is very important to always update your Will after any life changing event.

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